College of Nurses of Ontario v. Naval, 2016 ONCNO 104245

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Robert MacKay, Chairperson Public Member

Catherine Egerton Public Member

Karen Laforet, RN Member Winsome Plummer, RN Member Ingrid Wiltshire-Stoby, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

ALEXANDER A. NAVAL ) SELF REPRESENTATION for Registration No. 7041213 ) Alexander A. Naval

) Heard: December 19, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on December 19, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Alexander A. Naval (the “Member”) as stated in the Notice of Hearing dated September 20, 2016 are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that, while employed as a Registered Nurse at St. Michael’s Hospital, in Toronto, Ontario, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for practice assessment in or about March 2014.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at St. Michael’s Hospital, in Toronto, Ontario, you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession by failing to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March 2014.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at St. Michael’s Hospital, in Toronto, Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional by failing to participate after being selected by the Quality Assurance Committee for practice assessment in or about March 2014.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2 and 3 in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows.

THE MEMBER

1. Alexander Naval (the “Member”) obtained a degree in nursing in the Philippines in 1967.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 1, 1970.

INCIDENT RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Failure to Participate in Quality Assurance

3. On or about March 24, 2014, a letter was sent to the Member advising that he was randomly selected to participate in the 2014 Practice Assessment, as part of the College’s Quality Assurance (“QA”) Program. The Member was required to complete and return the Practice Assessment requirements, including his 2014 Learning Plan and objective multiple-choice tests, to the College by April 25, 2014.

4. The Member failed to respond to the letter and to complete the Practice Assessment by April 25, 2014.

5. On or about May 21, 2014, the Member was sent another letter indicating that he had not completed the Practice Assessment and explaining what he needed to complete. The Member was given until June 15, 2014 to complete the assigned activities. The Member was also advised that if he did not complete the assigned activities by the deadline, the QA Committee may report him to the Inquiries, Complaints and Reports Committee (“ICRC”) for professional misconduct.

6. The Member did not complete the practice activities or contact the College.

7. On or about July 28, 2014, the Member was sent another letter from the QA Committee noting his failure to participate in the 2014 Practice Assessment. The Member was advised that if he failed to complete certain activities by September 8, 2014, the QA Committee could direct him to complete additional practice assessment components under subsection 28(3) of the Nursing Act for a cost of $1,500. The required activities were:

• Submit 2014 Learning Plan

• Submit one case example that demonstrates application to practice in Client-Centered Care: Therapeutic Nurse-Client Relationship, Revised 2006.

• Submit one case example that demonstrates application to practice in Maintaining Boundaries: Therapeutic Nurse-Client Relationship, Revised 2006.

• Submit one case example that demonstrates application to practice in Protecting Client from Abuse: Therapeutic Nurse-Client Relationship, Revised 2006.

• Submit one case example that demonstrates application to practice in Therapeutic Communication: Therapeutic Nurse-Client Relationship, Revised 2006.

• Submit one case example that demonstrates application to practice in Security: Documentation, Revised 2008.

• Submit one case example that demonstrates application to practice in Communication: Documentation, Revised 2008.

• Submit one case example that demonstrates application to practice in Accountability: Documentation Revised 2008.

8. The Member failed to complete and submit the directed activities by September 8, 2014, or at all. He did not contact the College.

9. On October 1, 2014, the QA Committee Chair notified the Member by letter that his name had been reported to the ICRC. The Member was given 14 days to make written submissions in response to the QA Committee’s decision. The Member did not provide a response.

10. On or about June 5, 2015, the College appointed an Investigator to inquire into and examine the Member’s practice.

11. On or about July 31, 2015, the College’s Investigator sent the Member a disclosure package with an invitation to respond to the ICRC by September 4, 2015.

12. On July 31, 2015, the College Investigator sent notice to the Member that the ICRC had directed an investigation into his practice. The Investigator provided copies of correspondence from the QA Committee and requested a response by September 4, 2015.

13. The Member did not provide a response to the ICRC.

14. On or about September 10, 2015, the Investigator left the Member a voicemail and sent a follow up email on the same day seeking a response. The Member did not respond.

15. The Investigator left a further voicemail on October 5, 2015, with no response from the Member.

16. If the Member were to testify, he would say that he did not complete the QA Practice Assessment because he was not proficient with a computer and feared he would not be able to complete the components of the assessment adequately as a result.

17. Despite this, the Member admits that he received the College’s letters explaining his requirement to participate in the 2014 QA program and was therefore aware of his obligation to comply.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing, as described in paragraphs 3 to 15 above, in that he contravened the standards of practice of the profession and failed to cooperate with the QA Committee or any assessor appointed by that Committee, and in particular, he failed to participate after being selected by the QA Committee for practice assessment.

19. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing, and in particular his conduct was unprofessional, as described in paragraphs 3 to 15 above.

Decision

The Panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1 and 2 of the Notice of Hearing. As to the allegation in paragraph 3, the Panel found that the Member engaged in conduct that would reasonably be considered by members of the profession to be unprofessional by failing to participate after being selected by the Quality Assurance Committee for a practice assessment on or about March 2014.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and found that the evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 3 to 15 in the Agreed Statement of Facts, which show that the Member was aware of the requirement to participate in the Quality Assurance program but chose to disregard his obligations.

Allegation #2 in the Notice of Hearing is supported by paragraphs 3 to 15 in the Agreed Statement of Facts. The standards of practice of the profession clearly require members to be accountable to the statutory committees of the College.

With respect to Allegation #3, the Panel found that the Member’s conduct in failing to participate after being selected by the Quality Assurance Committee for a practice assessment on or about March 2014, and failing to respond to written and voicemail requests up to and including October 5, 2015 was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations.

Penalty Submission

Counsel for the College and the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission requests that the Panel make an order requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

College Counsel advised that the reason for the order requested in this case is that the Member has given the College an undertaking to permanently resign from the College (the “Undertaking”). The Undertaking provides that the Member will:

a) Permanently resign as a member of the College, effective from the date upon which the College accepted the Undertaking dated December 8, 2016.

b) Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future.

c) Agree that the public portion of the Register maintained by the College will indefinitely reflect the Member entered into the Undertaking with the Executive Director to permanently resign as a member of the College as a part of an agreed resolution of allegations of professional misconduct to any other information that is required to be posted.

The College provided two cases in support of the proposed penalty Undertaking:

• CNO v. Cowell Desante (Discipline Committee, 2016). In Cowell Desante, the member had failed to comply with the QA Committee in 2013. This case shows what kind of penalty is typically ordered in these kinds of cases: a reprimand, a term of suspension, and remedial terms, conditions and limitations.

• CNO v. O’Neill (Discipline Committee, 2016). In O’Neill, the member admitted to professional misconduct by contravening the standards of practice of the profession. In this case, the member also agreed to enter an undertaking to permanently resign from the College. The panel in that case noted that an undertaking provides the ultimate public protection in that the member agrees to not re-apply to the College.

The parties agreed that the mitigating factors in this case were: the Member’s age, the fact the Member had retired from practice, resigned from the College, and entered into a formal undertaking with the College to never reapply for registration in Ontario or any other jurisdiction as a nurse in the future.

The prime aggravating factor in this case was the professional misconduct involved not responding to the College despite repeated opportunities to do so.

The proposed penalty provides for specific deterrence through the reprimand, which also demonstrates to the membership as a whole that conduct of this nature will not be tolerated.

Public protection is achieved by the Member’s Undertaking to resign from the College and not to seek registration as a nurse in Ontario or in any other jurisdiction again in the future.

Penalty Decision

The Panel orders that the Member appear before the Panel to be reprimanded within three months of the date that its Order becomes final.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member co-operated with the College, and, by agreeing to the facts and proposed penalty has accepted responsibility. The Panel found that the penalty satisfies the principles of general deterrence and public protection.

The Panel considered the cases submitted by College Counsel regarding the proposed penalty and found that both provided some support to the Panel in its review. The Panel considered the fact that the Member has undertaken to resign from practice, and has undertaken to never apply for registration as a nurse in Ontario or in any other jurisdiction again in the future.

The Panel found that the Undertaking renders a suspension, and terms, conditions, and limitations unnecessary. Had the Member’s situation been different and no Undertaking given, the Panel would have ordered a term of suspension, and terms, conditions and limitations on the Member’s Certificate of Registration even though he had resigned.

I, Robert MacKay, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

Chairperson Date

Panel Members:

Robert MacKay, Chairperson, Public Member

Catherine Egerton, Public Member

Karen Laforet, RN

Winsome Plummer, RN

Ingrid Wiltshire-Stoby, RN